Mon 8 Dec, 2008
Walter Olson, a conservative opponent of the U.S. legal system, has an opinion piece out today in the fall issue of City Journal, in which he argues that the slavery reparations movement has “completely disappeared from the national agenda.”
This is, of course, a puzzling argument on the surface, given that the last two years have seen an unprecedented outpouring of state and federal apologies for slavery, often seen as a precursor to reparations, and federal reparations legislation pending for twenty years finally advanced to the hearing stage during the current Congress.
Could Olson be right, though, or at least have an important argument to make about the reparations movement?
Olson is well known for arguing that many forms of litigation in this country are excessive, so he would be naturally predisposed against at least the older, lawsuit-based approach to slavery reparations. Indeed, he has made similar arguments against the reparations movement on the op-ed page of the L.A. Times and in his own blog, Overlawyered.
However, his argument, in an essay entitled, “Reparations, R.I.P.,” goes well beyond the tired reasons why lawsuits demanding reparations for slavery are doomed as a matter of law and public policy. The back story is that Olson is working on a book about the role of law schools on the law, and in a draft chapter, he argues that legal academics have been among the strongest advocates of the reparations movement.
Reparations in the national consciousness
As far as I can tell, a key aspect of Olson’s argument is simply mistaken. He claims that reparations were all the rage around 2001, but that today, “reparations seem to have completely disappeared from the national agenda. Few mention them anymore.” This is certainly not true if one considers, for instance, how often reparations are discussed in newspapers and journals, or if one takes blogs as a rough measure of what issues are generating attention these days. (Olson admits that by his chosen measure, there are an average of about 1,000 news stories each year mentioning slavery and reparations.)
This is also an odd argument to make, given that the issue has gained unprecedented political prominance in the last two years, as legislatures in state after state have apologized for slavery and as the federal reparations legislation sponsored since 1989 by Rep. John Conyers (D-Mich.), now chair of the House Judiciary Committee, advanced to its first public hearing within the last year.
Olson would appear to be mistaken in his central thesis, if for no other reason, than because it was only in July of this year that the U.S. House of Representatives apologized for its role in slavery, in H.Res. 194, and announced “its commitment to rectify the lingering consequences of the misdeeds committed against African Americans under slavery and Jim Crow.” Whether or not such a commitment would take the form of anything resembling reparations, this is surely a dramatic step forward for that movement.
Reparations lawsuits and political solutions
I can only assume that Olson has been lead astray by his focus on lawyers and the legal system, and by his interest in reparations as a subject for his forthcoming book on law schools. This seems to have caused him to focus on the movement for reparations lawsuits, including the pioneering work of Professor Charles Ogletree of Harvard Law School, who appears in Traces of the Trade to discuss those lawsuits with us.
The demise of the reparations lawsuits, which was entirely predictable, naturally resulted in a steep decline in debates about proposals for reparations lawsuits among serious observers of the legal system. This does not mean, however, that reparations proposals lost steam; instead, however, the focus shifted quickly to the political arena.
Olson also ventures into the subject of political forms of reparations, but here he stumbles badly. He argues, for instance, that increased federal spending on “social welfare, education, housing and urban programs,” as well as affirmative action and similar programs in education and employment, amounted to reparations in all but name.
Were Olson more familiar with this subject, he might have addressed the obvious counter-argument that most of these programs were not targeted at blacks and did not, in fact, principally benefit blacks. Instead, Olson makes the astonishing claim that U.S. spending on these programs was “aimed primarily at relieving the problem of black poverty” and that these programs merely “didn’t make race a prerequisite for eligibility,” despite the fact that most beneficiaries of federal welfare programs and education spending, for instance, were white. Olson also fails to address the related issue which looms very large when comparing these programs to slavery reparations, namely, that these programs did very little to actually compensate blacks for the inequities resulting from the nation’s long history of slavery and discrimination. To say that the small portion of federal spending on these programs which reached black citizens was merely a “drop in the bucket” would be a serious understatement.
Dispelling myths about race
Olson does make an excellent point when he notes that one major difficulty for the reparations movement has been public opinion: despite the considerable publicity for the idea since 2001, white Americans still overwhelmingly oppose the concept. However, here again he misses an essential aspect of the issue. Olson naively claims that the rise of the slavery reparations debate has already caused Americans to engage in “national introspection” and to arrive at a “rough consensus” that any form of reparations would be an inappropriate way to address the nation’s difficulties with race.
In fact, even now, most Americans remain woefully ignorant of the basic facts of the nation’s history on race. Time and again, I have spoken to those who oppose reparations, in large audiences or one-on-one, and found that their objections were quite reasonable, but based on wildly mistaken understandings about the history or the contemporary state of race relations.
This widespread lack of basic information does have a positive side: I have encountered few people who, after learning a bit about the facts, don’t become far more open to addressing the legacy of slavery and discrimination in ways which they would previously have opposed. Whatever the “rough consensus” might be, after a national conversation which brought the facts to the attention of most Americans, it is impossible to say that it would not favor any form of slavery reparations.
Olson is at his strongest when he notes, almost in passing, that the reparations movement has “helped undermine … the irritating smugness of many whites whose forebears had never resided in the South or owned slaves”:
The more institutions remote from Southern history could be linked to slavery, the more seeming bystanders—the Rhode Island bank teller, the railroad employee in Colorado, the Seattle engineer descended from recent immigrants—could plausibly be portrayed as undeserving inheritors of “white privilege.”
Olson seems to assume that despite the validity of the historical claims involved, it is inappropriate to portray these innocent Americans as the inheritors of unearned privilege. However, he does so only in the context of condemning the idea of reparations lawsuits, which he understandably believes are an inappropriate means of addressing this legacy. As a result of this single-minded focus, Olson never does explain what, if anything, he would have our nation do to address enduring legacy of slavery and discrimination.